1 14-351 United States v. Riddle
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is govern ed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appe ndix or an electronic database (with the notation “summary order”). A party citing a summary ord er must serve a copy of it on any party not represented by counsel. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on the 26 th day of February, two thousand fifteen. Present: ROBERT A. KATZMANN, Chief Judge , RAYMOND J. LOHIER, JR., CHRISTOPHER F. DRONEY, Circuit Judges.

____________________________________________________________ UNITED STATES OF AMERICA, Appellee , - v - No. 14-351-cr ALVIN RIDDLE, AKA BILLY JOE RI DDLE, FKA ALVIN D. RIDDLE, Defendant-Appellant.

____________________________________________________________ For Defendant-Appellant: J AMES P. E GAN (Randi J. Bianco, on the brief ), for Lisa A. Peebles, Federal Public Defender, Syracuse, New York. For Appellee: L ISA M. F LETCHER (Brenda K. Sannes, on the brief ), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.2 Appeal from the United States District Cour t for the Northern Di strict of New York (Mordue, J. ). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that this case is REMANDED to the district court for further proceedings consistent with this order. Defendant-Appella nt Alvin Riddle appeal s from a January 17, 2014, judgment of conviction entered purs uant to a guilty plea by the Un ited States District Court for the Northern District of New York (Mordue, J. ). Riddle pleaded guilty to failing to register as a sex offender in violation of the Sex Offender Registration and Notificat ion Act (“SORNA”), 18 U.S.C. § 2250(a). The district court sentenced Riddle to 77 mont hs’ imprisonment. On appeal, Riddle challenges (1) SORNA’s validity under the Ex Post Facto Clause of the United States Constitution and (2) the procedural and substantive reasonableness of his sentence. We assume the parties’ familiarity with the relevant facts, procedural history of the case, and the issues presented for review. We begin with Riddle’s contention that the registration requirements imposed by SORNA violate the Ex Post Facto Clau se of the United States Constitution. See U.S. Const. art. I, § 9, cl. 3. This argument is foreclosed by our ca se law, which has held that if a defendant’s “travel and failure to register occurred after SORNA’s enactment and the effective date of the regulations indicating that SORNA applies to all sex offenders,” there can be “no ex post facto problem with [the defendant’s] conviction[].” United States v. Guzman , 591 F.3d 83, 94 (2d Cir. 2010). Riddle strives to distinguish Guzman , with some force, as reaching only the question of “whether a defendant could be punished for failing to register when the relevant states had not yet implemented SORNA.” Appellant’s Br. 26 n.11. Whatever the merits of Riddle’s reading of Guzman , however, that reading is barred by United States v. Lott , 750 F.3d 214, 220 (2d Cir. 2014), which interpreted Guzman as “reject[ing] claims that SO RNA violates the . . . Ex Post3 Facto Clause.” We are bound by Lott , and therefore reject Riddle ’s claim that his conviction violates the Ex Post Facto Clause. Turning to Riddle’s challenge to his 77-month sentence, we first address Riddle’s argument that the district court committed proc edural error. A sentence is procedurally unreasonable if the district court committed a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelin es range, treating the Guidelines as mandatory, failing to consider the [18 U.S. C.] § 3553(a) factors, selectin g a sentence based on clearly erroneous facts, or failing to ade quately explain the chosen sentence.” Gall v. United States , 552 U.S. 38, 51 (2007). Riddle contends that the di strict court relied on four clearly erroneous facts when determining Riddle’s sentence. For three of these f our facts, however, the di strict court’s factual findings were properly supported by the record. First, the distri ct court correctly found that Riddle had a history of failing to register as a sex offender. Riddle expressly admitted in his plea agreement that “[a]t no time after leaving Arka nsas for North Carolina, or North Carolina for California, or California for New York, did [he] re gister or update his re gistration with Arkansas, North Carolina, California, or New York, as required by law.” J.A. 100, ¶ 5(k). Second, the district court did not err by concluding that Ri ddle “has a history of failing to appear and absconding from supervision.” J.A. 161-62. The Presentence Report (“PSR”) indicated that Riddle failed to appear in January, April, a nd November 2005, as well as October 2010 and January 2011. Riddle did not object to these statements before the district court, and has thus waived any challenge to the PSR’s factual findin g. Moreover, Riddle concedes that he absconded from supervision in 2005, and that he wa s convicted of escaping from prison in 1978. Third, the district court accurately described Riddle’s histor y of using different names. As set forth in the4 PSR, Riddle has gone by multiple pseudonyms, in cluding Dan Riddle, Billy Joe Riddle, and William Baker. Riddle’s final factual challenge has more merit. In 1972, Riddle pleaded guilty to murdering an 80-year-old woman. The PSR stated that, according to contemporary newspaper accounts and institution records fr om the Florida Department of Corrections, Riddle raped the victim in addition to murdering her. Riddle wa s neither charged with nor convicted of rape. Riddle maintains that he struck the victim when she walked in on him unexpectedly, and that he then fled immediately. At sentencing, the district court repeatedly referred to Riddle’s “ei ght felony convictions starting with the rape and mu rder of an 80-year-old woman.” J.A. 161. After the second reference to a rape conviction, Riddle’s counsel objected, explai ning that Riddle had never been convicted of rape. The district court acknowledged that Riddle had never been convicted of rape, but thereafter referred to Riddl e’s violent history as including an “alleged” rape. J.A. 167-68. Similarly, the district court’s written statement of reasons described Riddle’s “eight felonies including an alleged rape.” It is not clear from the record, but the dist rict court may have erred by continuing to rely on the allegations that Riddle raped the murder victim. Although the government is correct that the district court was entitled to rely on th e conduct underlying Riddle’s murder conviction, the district court never made any factual findings about what that underlying conduct was. The PSR did not reach any conclusions a bout whether the rape actually occurred and instead simply recited (1) the allegations contained in cont emporary newspaper accounts and Riddle’s prison records and (2) Riddle’s contra dictory account. Whether Riddle ra ped the murder victim was thus a disputed factual question requiring resolution by the district court. In the absence of a5 factual finding that Riddle committed rape, th e district court coul d not rely on unsupported allegations of rape to justify increasing Riddle’s sentence. See, e.g. , United States v. Helmsley , 941 F.2d 71, 98 (2d Cir. 1991) (“If an inaccuracy is alleged [in a PSR], the court must make a finding as to the controverted matter or refr ain from taking that ma tter into account in sentencing.”). We therefore conclude that this case should be remanded purs uant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994). On remand, the district court shall either (1) hold an evidentiary hearing to make a factual finding whether Riddle raped the murder victim, (2) state that its sentence did not rely on the allegati ons of rape, or (3) state that Riddle must be resentenced. Because we rema nd this case, we do not reach Riddle’s other challenges to the procedural and substa ntive reasonableness of his sentence. For the foregoing reasons, we hereby REMAND the case to the district court. Upon the conclusion of proceedings before the district cour t, either party may restore jurisdiction to this Court by filing with the Clerk a le tter (along with a copy of the relevant order or transcript) advising the Clerk that jurisdicti on should be restored. In the inte rest of judicial economy, the renewed appeal will be assigned to this panel.

FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK